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Trump’s America: “‘Open Season’ on Immigrants as Discretion Fades”

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As new examples in Ohio and Texas demonstrate, and as we have seen throughout the year and throughout the country, the Trump administration has done away with discretion and common sense deportation priorities.

Said Frank Sharry, Executive Director of America’s Voice:

Instead of focusing on public safety threats, they are going after anyone and everyone they can find, regardless of family and community ties.

These are the people who are actually showing up for annual appointments at Immigration and Customs Enforcement (ICE). Instead of having their files reviewed, seeing that they have maintained a good record, and issuing them another stay of deportation due to their family ties, they are being slapped with an ankle monitor – or put in detention – and told to pack their bags for deportation. This abrupt and callous change is traumatizing many American families and children. The American people need to know what our government is doing in our name, with our tax dollars. It’s unconscionable.

As Dean DeChairo of Roll Call explores in a new must-read story, it’s “open season” on immigrants in Trump’s America: 

The recent arrest and detention of an undocumented 10-year-old girl with cerebral palsy is the clearest evidence yet that President Donald Trump isn’t focused solely on “bad hombres,” immigrant advocates say.

Arrests of undocumented criminals are up under Trump, a testament to his promise to crack down on dangerous immigrants. But arrests of undocumented people without any convictions have also skyrocketed, raising questions about how the administration is using what it says are limited resources to keep the country safe.


Prosecutorial discretion has long been a key component of the government’s enforcement strategy. All three immigration agencies — CBP, Immigration and Customs Enforcement and U.S. Citizenship and Immigration Services — are authorized to make case-by-case determinations when they encounter undocumented people, including whether to arrest them and place them in deportation proceedings.

Presidents Dwight D. Eisenhower and John F. Kennedy exercised discretion when they allowed certain undocumented Cubans to remain in the United States after the 1958 revolution on the island. In 1990, President George Bush authorized deportation deferrals for undocumented spouses and children of U.S. citizens. And PresidentBarack Obama limited enforcement to violent criminals and recent border-crossers in 2014 after being tagged the “deporter in chief” by Janet Murguía, president of the group that was then known as the National Council of La Raza.

Trump upended his predecessor’s immigration enforcement priorities quickly after taking office. In February, then-Homeland Security Secretary John F. Kelly issued a memorandum declaring that DHS would “no longer exempt classes or categories of removable aliens from potential enforcement.”

“Prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from enforcement of the immigration laws,” the memo states.

The directive all but wipes out the role of discretion, activists say.


Choosing not to make an arrest isn’t the only form of discretion that immigration officers may use. For years, ICE has held off removing undocumented immigrants who aren’t considered a threat to public safety and, in some cases, who have U.S. citizen children or spouses — even if a judge has issued a final order of removal.

Under Trump, that’s changing.

“What ICE has done in many of these cases is revoke those stay of removals and place them in deportation proceedings,” said Randy Capps, director of research for U.S. programs at the nonpartisan Migration Policy Institute.

One such case involved Carlos Humberto Cardona, an undocumented father who assisted in relief efforts at Ground Zero following the Sept. 11, 2001, terrorist attacks in New York City. Cardona, who was convicted of a nonviolent drug offense in 1990, had periodically checked in with ICE officers in recent years until he was arrested over the summer.


The Justice Department, which prosecutes deportation cases against immigrants arrested by ICE, is also scaling back its use of discretion by pressuring immigration judges to decide cases more quickly and to not delay cases previously considered low-priority.

Immigration laws allow judges to grant numerous delays in immigrants’ court proceedings at the request of their lawyers, but the number of continuances had increased significantly — by 23 percent from fiscal 2006 through 2015, according to the Government Accountability Office.


But without a rewrite of the February policy memo allowing for the arrest of any undocumented immigrant, advocates worry that Trump’s crackdown on non-criminals will ultimately split up families and render the role of discretion in immigration enforcement a thing of the past.

“Without recognizing the humanitarian end of discretion, you end up with a pretty troubling policy,” Wadhia said.